Guardian National Insurance Co Ltd v Van Gool NO

• Jurisdiction: South Africa
• Citation: 1992 (4) SA 61 (A)

Guardian National Insurance Co Ltd v Van Gool NO
1992 (4) SA 61 (A)

1992 (4) SA p61

Citation	1992 (4) SA 61 (A)
Court	Appellate Division
Judge	Joubert JA, Hefer JA, Vivier JA, F H Grosskopf JA, Goldstone JA
Heard	May 4, 1992
Judgment	May 29, 1992

Flynote : Sleutelwoorde B

Negligence — Action for damages — For bodily injuries — Future medical expenses — Minor injured — Claim by father in his capacity as father and natural guardian — Minor having, apart from right to claim support from C parents to pay her prospective medical and hospital expenses, additional right to claim compensation from wrongdoer for general damages relating to non-patrimonial loss as well as prospective patrimonial loss such as future medical expenses — Said rights co-existent and parent's duty of support not excluding minor's delictual claim against wrongdoer.

Headnote : Kopnota

D C, a minor daughter of the respondent, had sustained bodily injuries when a motor vehicle driven by the respondent had collided with her and run over her. The motor vehicle in question was insured with the appellant. The respondent, in his capacity as C's father and natural guardian, instituted action on her behalf in a Local Division against the appellant as authorised insurer in terms of s 21 of the Motor Vehicle Insurance Act 56 of 1972, claiming, inter alia, for 'estimated future medical and E hospital expenses'. It was common cause that the respondent was financially able to support her and pay all the estimated future medical and hospital expenses necessitated by the accident. The appellant contended in a special plea that the respondent owed C a duty of support until her majority or until she became self-supporting, which would include the duty to pay in his personal capacity all medical and hospital expenses reasonably incurred in respect of her, whereas the respondent in F his capacity as father and natural guardian had suffered no damages in respect of such expenses: he should accordingly have sued in his personal and not in his representative capacity. The issue raised was thus whether or not C as a minor was in law entitled to claim compensation for future medical and hospital expenses as prospective patrimonial loss in respect of her bodily injuries. The Court a quo dismissed the special plea but granted leave to appeal to the Appellate Division. The Court held that there were two legal rights available to C: (1) a right to claim from her G parents to pay, according to their means, her prospective medical and hospital expenses; and (2) an additional right as the victim of a delict perpetrated against her to claim compensation from the wrongdoer for general damages relating to non-patrimonial loss (such as pain and suffering, loss of amenities, disfigurement and loss of expectation of life) as well as prospective patrimonial loss such as future medical and hospital expenses. These two rights were co-existent: her right to personal support did not deprive her of her delictual right against the H wrongdoer. The Court pointed out that in the case of an infans below the age of seven years the practice was that the guardian or curator ad litem sued on behalf of the infans in his representative capacity, and that this was the procedure adopted by the respondent. Since the special plea was directed at the fact that the respondent did not sue in his personal capacity, the special plea had correctly been dismissed by the Court a I quo. Accordingly the appeal had to be dismissed with costs.

The decision in the Witwatersrand Local Division in Van Gool NO v Guardian National Insurance Co Ltd1992 (1) SA 191 (W) confirmed.

Case Information

Appeal from a decision in the Witwatersrand Local Division (De Klerk J), reported at 1992 (1) SA 191. The facts appear from the judgment of Joubert J JA.

1992 (4) SA p62

A E M du Toit SC (with him J Strauss) for the appellant referred to the following authorities: Van Gool NO v Guardian National Insurance Co Ltd1992 (1) SA 191 (W) at 193A-C, 193I-195D, 195D-195E; Schnellen v Rondalia Assurance Corporation of SA Ltd1969 (1) SA 517 (W) at 518A-519B; Ncubu v National Employers General Insurance Co Ltd1988 (2) SA 190 (N) B ; Du Preez v AA Mutual Insurance Association Ltd1981 (3) SA 795 (E) at 798H-799A; Evins v Shield Insurance Co Ltd1980 (2) SA 814 (A) at 841E-H; Constantia Versekeringsmaatskappy Bpk v Victor NO1986 (1) SA 601 (A) at 612J-613C; Union Government (Minister of Railways and Harbours) v Warneke1911 AD 657 at 670-2.

D H Soggot SC for the respondent referred to the following authorities: C Grotius The Jurisprudence of Holland (Lee's translation 4th ed at 26, 27, 475 paras 2 and 3); Van Leeuwen Commentaries on Roman-Dutch Law (Kotzé's translation vol 1 at 86, 135, 293); Huber Jurisprudence of My Time (Gane's translation vol 1 at 66); Pothier Oeuvres (Dupin Ainé) part 1 title 6 at 189; Van der Linden Institutes of Holland (Juta's translation at 29); Voet D Commentary on the Pandects 9.2 (Gane's translation vol 2 at 564); Spiro Law of Parent and Child 4th ed at 171; Van Gool NO v Guardian National Insurance Co Ltd1992 (1) SA 191 (W); In re Estate Visser1948 (3) SA 1129 (C) at 1137; Boberg The Law of Persons and the Family at 261; Jones NO v SANTAM Bpk1965 (2) SA 542 (A); Dreyer v Santam Insurance Co Ltd (unreported, ECD case No I2595/E); Mashinini v Senator Insurance Co Ltd E (unreported, WLD case No 334/79); Ncubu v National Employers General Insurance Co Ltd1988 (2) SA 190 (N); Schnellen v Rondalia Assurance Corporation of SA Ltd1969 (1) SA 517 (W) at 518F-519A; Abbott v Bergman1922 AD 53; Union Government (Minister of Railways and Harbours) v Warneke1911 AD 657 at 670-1; Du Preez v AA Mutual Insurance Association Ltd 1981 (3) SA 795 (T) F ; and Botha v Rondalia Versekeringskorporasie van Suid-Afrika Bpk1978 (1) SA 996 (T) at 999C-F.

Cur adv vult.

Postea (May 29).

Judgment

G Joubert JA:

This is an appeal against a judgment of De Klerk J in the Witwatersrand Local Division, dismissing a special plea raised by the appellant as defendant in an action instituted by the respondent ('Van Gool') as plaintiff. Leave to appeal to this Court was granted by the Court a quo. The judgment of the Court a quo has been reported: see Van Gool NO v Guardian National Insurance Co Ltd1992 (1) SA 191 (W).

H The material facts in this appeal are common cause. On 7 February 1986 Catherine, a minor daughter (an infans approximately two years and three months of age) of Van Gool sustained serious bodily injuries when a motor vehicle driven by him collided with and ran over her. The motor vehicle was insured by the appellant in terms of the Compulsory Motor Vehicle I Insurance Act 56 of 1972 ('the Act'). Van Gool, in his representative capacity as father and natural guardian of Catherine, during September 1989 instituted an action against the appellant claiming payment of R937000 compensation in terms of s 21 of the Act. According to his J particulars of claim the sum of R937 000 comprised the following amounts:

1992 (4) SA p63

Joubert JA

(i)

A R298 000 for estimated future medical and hospital expenses;

(ii)

R564 000 for estimated future loss of earnings and loss of earning capacity; and

(iii)

R75 000 being damages for pain and suffering, loss of amenities of life, disability and disfigurement.

It is to be noted that there was no claim in respect of medical and B hospital expenses incurred until the institution of the action.

It was also common cause that Van Gool as father and natural guardian of Catherine was financially able to support her and to pay all the estimated future medical and hospital expenses necessitated by the accident.

The appellant as defendant raised a special plea for the dismissal of the aforementioned claim for future medical and hospital expenses. The C basis of the special plea is that Van Gool as father and natural guardian of Catherine owes her a duty of support until her majority or until she becomes self-supporting, which would include the duty to pay in his personal capacity all medical and hospital expenses reasonably incurred in respect of her, whereas Van Gool in his capacity as her father and natural D guardian has not suffered any damage in respect of such expenses.

The damages relating to bodily injuries are in practice classified as either special damages or general damages. See Corbett and Buchanan The Quantum of Damages 2nd ed (1964) at 3:

'Secondly, as regards bodily injury, all patrimonial loss actually...